Gilliam v. Gilliam et al

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 1/6/15 ORDERING that plaintiff's motion for service by publication 8 is DENIED without prejudice. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY GILLIAM,

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Plaintiff,

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No. 2:14-cv-02454-MCE-AC

v.

ORDER

MA ELIZA CANGGAS GILLIAM, et al.,

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Defendants.

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This matter is before the undersigned pursuant to Local Rule 302(c)(21). Currently before

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the court is plaintiff’s motion for service by publication upon defendant Ma Eliza Canggas

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Gilliam (“Defendant Canggas”) pursuant to California Civil Procedural Code § 415.50. ECF No.

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8.

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The Federal Rules of Civil Procedure allow service upon individuals located within the

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United States according to the law for serving a summons “in the state where the district court is

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located.” Fed. R. Civ. P. 4(e). However, when serving an individual in a foreign country an

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individual must be served by an “internationally agreed means of service that is reasonably

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calculated to give notice, such as those authorized by the Hague Convention on the Service

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Abroad of Judicial and Extrajudicial Documents.” Id. at 4(f)(1). “[I]f there is no internationally

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agreed means, or if an international agreement allows but does not specify other means,” then an

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individual in a foreign country may be served “by [any] method that is reasonably calculated to

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give notice.” Id. at 4(f)(2).
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Plaintiff does not allege facts showing that Defendant Canggas is an individual currently

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in the United States. As noted above, reliance on state law for a method of service is appropriate

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only when an individual is located within the United States. Fed. R. Civ. P. 4(e)(1). Plaintiff

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does allege that he has attempted to effect personal service upon Defendant Canggas at her

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address, 7056 Lyndale Circle, Elk Grove, California 95758 (“the Property”). ECF No. 8, Exh. A

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at 2. However, it is unclear whether plaintiff is alleging that Defendant Canggas currently resides

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at the Property. For example, it is impossible to discern from plaintiff’s motion whether those

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who attempted to serve Defendant Canggas had any contact with her at the Property. See id.

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Further, in a December 9, 2014 motion, plaintiff alleged in no uncertain terms that Defendant

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Canggas currently resides in the Philippines. ECF No. 6 at 2. Based on these facts the court finds

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that plaintiff has not established that Defendant Canggas is an individual in the United States.

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Accordingly, service pursuant to Cal. Code Civ. P. § 415.50 is not appropriate.

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If Defendant Canggas currently resides in the Philippines, then service following state law
is not permitted and plaintiff must comply with Fed. R. Civ. P. 4(f).

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Accordingly, THE COURT HEREBY DENIES plaintiff’s motion for service by

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publication (ECF No. 8) without prejudice.1

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DATED: January 6, 2015

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Even if plaintiff had clearly alleged that Defendant Canggas was an individual in the United States, the court could
not grant his motion. “Service by publication is permissible ‘only as a last resort.’” Faegin v. LivingSocial, Inc., No.
14CV00418-WQH-KSC, 2014 WL 5390331, at *1 (S.D. Cal. Oct. 22, 2014) (quoting Donel, Inc. v. Badalian, 150
Cal. Rptr. 855, 858 (Ct. App. 1978)). Under California law, “[a] summons may be served by publication if upon
affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot
with reasonable diligence be served in another manner specified in this article.” Cal. Civ. Proc. Code § 415.50
(emphasis added). Plaintiff does not sufficiently allege that he has exercised reasonable diligence in effecting service
by all other means. See Sanford v. Smith, 90 Cal. Rptr. 256, 262–63 (Ct. App. 1970) (approving the standards of
diligence required by the local rules of Los Angeles Superior Court: recent inquiries of all relatives, friends, and other
persons likely to know defendant's whereabouts; searches of city directories, telephone directories, tax rolls, and
register of voters; and inquiries made of occupants of all real estate involved in the litigation). For example, plaintiff
alleges that every time he has attempted to serve Defendant Canggas at her residence she has refused to answer her
door. ECF No. 9, Exh. A at 2. However, it is impossible to tell from plaintiff’s allegations whether (1) Defendant
Canggas was present at the time; (2) anyone else was present at the time; or (3) Defendant Canggas had any contact
with the process servers. Further, plaintiff does not allege that he attempted to contact her family, friends, or anyone
else who knows her whereabouts to confirm her location. See Kott v. Superior Court, 53 Cal. Rptr. 2d 215, 221
(1996).

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